Citation Nr: 1033602
Decision Date: 09/08/10 Archive Date: 09/15/10
DOCKET NO. 08-27 724 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for a pulmonary and
respiratory disorder.
2. Entitlement to service connection for residuals of a cold
injury to the upper and lower extremities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and friend
ATTORNEY FOR THE BOARD
M. Turner, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (Board)
on an appeal from a rating decision issued by the Regional Office
(RO) in Hartford, Connecticut.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The issue of entitlement to service connection for residuals of a
cold injury to the upper and lower extremities is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington, DC.
VA will notify the appellant if further action is required.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
Prior to the promulgation of a decision in the appeal, the
appellant requested that his appeal for service connection for a
pulmonary and respiratory disorder be withdrawn.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the appellant (or his
or her authorized representative) have been met with respect to
the Veteran's claim of entitlement to service connection for a
pulmonary and respiratory disorder. 38 U.S.C.A. § 7105(b)(2),
(d)(5) (West 2002); 38 C.F.R. § 20.204 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the Veteran's claim of entitlement to service
connection for a pulmonary and respiratory disorder, the Board
notes that it may dismiss any appeal which fails to allege
specific error of fact or law in the determination being
appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be
withdrawn as to any or all issues involved in the appeal at any
time before the Board promulgates a decision. 38 C.F.R. § 20.204
(2009). Withdrawal may be made by the appellant or by his or her
authorized representative. 38 C.F.R. § 20.204.
In the present case, the appellant has withdrawn his appeal for
service connection for a pulmonary and respiratory disorder, in
correspondence that apparently received in early 2009. The
Veteran again expressed his desire to withdraw that issue at his
March 2009 RO hearing. Thus, there remains no allegation of
errors of fact or law for appellate consideration with respect to
such claim. Accordingly, the Board does not have jurisdiction to
review this claim and it is dismissed.
ORDER
The claim of entitlement to service connection for a pulmonary
and respiratory disorder is dismissed.
REMAND
The Veteran claims that he sustained cold injuries while he was
stationed in Korea near the demilitarized zone (DMZ). He alleges
that he had to perform duties outside in below 0 temperatures and
that he was not provided with proper cold weather gear. His
injuries reportedly include pain, numbness, and extreme cold
sensitivity in his extremities, all contended to be the result of
prolonged exposure to extreme weather conditions in Korea.
The Veteran was afforded a cold weather protocol examination in
April 2010. The examiner did not provide a diagnosis for the
Veteran's symptoms and did not explain whether the symptoms
experienced by the Veteran were consistent with the type of
injuries that could result from exposure to cold temperatures.
Rather, with regard to the Veteran's allegation of cold injury
residuals, the examiner stated only that the service treatment
records did not reflect that he had any cold injuries during his
service. Furthermore, the examiner opined that the Veteran's
smoking was as likely as not causing or contributing to his
symptoms. However, she did not provide any rationale for her
conclusion. Furthermore, even if smoking contributed to the
Veteran's symptoms he would still be entitled to service
connection if, in fact, his symptoms are due in part to exposure
to cold temperatures in service. Therefore, the examiner's
conclusion in this regard does not adequately explain the
etiology of the Veteran's symptoms. For these reasons, the Board
finds that the April 2010 VA examination is not adequate for
rating purposes and that a new VA examination should be
conducted.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be scheduled for a VA
examination to determine the nature and
etiology of the Veteran's claimed pain,
numbness, and cold sensitivity in his upper
and lower extremities. The examiner should
provide a diagnosis, or, if no diagnosis can
be rendered, he or she should explain why
this is the case. The examiner should
indicate whether the Veteran's symptoms are
consistent with residuals of a cold injury or
prolonged exposure to cold temperatures. The
examiner should also provide an opinion as to
whether it is at least as likely as not that
the Veteran's symptoms are caused by prior
exposure to cold weather or a cold weather
injury. If no opinion can be provided
without resort to undue speculation, the
examiner should explain why this is the case.
If the examiner attributes the Veteran's
symptoms to a cause other than exposure to
cold, then the examiner should identify the
probable etiology of the Veteran's symptoms.
The examiner must explain the rationale for
all of his or her conclusions in the report
of examination. All necessary tests and
studies should be performed in connection
with the examination.
2. After completion of the above
development, the Veteran's claim should be
re-adjudicated. If the determination remains
unfavorable to the Veteran, he and his
representative should be provided with a
supplemental statement of the case (SSOC) and
given an opportunity to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
______________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs